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SECOND BIENNIAL REPORT 

OV X 

STATE ENGINEER 



LAW OF 

WATER CONSERVATION 

AND USE 

Address Before the Oregon State Bar Association at 
Portland Oregon, November 17, 1908 



HON. WILL R KING 

SUPREME COURT COMMISSIONER 

Published at the request of His Excellency, 
GEO. E. CHAMBERLAIN, Governor 



JOHN H. LEWIS, STATE ENGINEER 









SALBM, OBEGON 
VIXTT8 S. DTJNIWAT, STATE PBIXTE U 

1908 



- 



SUPPI/EMENT 

TO THE 

SECOND BIENNIAL REPORT 

OF THE 

STATE ENGINEER 



LAW OF 

WATER CONSERVATION 

AND USE 

Address Before the Oregon State Bar Association at 
Portland Oregon, November 17, 1908 



HON. WILL R. KING 

SUPREME COURT COMMISSIONER 
Published at the request of His Excellency, 

GEO. E. CHAMBERLAIN, Governor 



JOHN H. LEWIS, STATE ENGINEER 

fri 







SALEM, OREGON 
WILLIS S. DTJNIWAY, STATE PRINTER 

1908 



n. of o 









LETTER OF INSTRUCTION. 



Salem, Oregon, November 28, 1908. 
Mr. John H. Lewis, State Engineer, Salem, Oregon — 

Dear Sir: Inasmuch as the need of better water laws has been so keen- 
ly felt in different parts of the State, the address of Hon. Will R. King on 
the "Law of Water Conservation and Use," before the State Bar Associa- 
tion on November 17, 1908, is of considerable interest at this time. 

In connection with the report of the State Engineer's department, you 
are authorized by law to recommend legislation along this line. If it appears 
that the suggestions made in such address as to administrative details are 
in harmony with the best practice in other states having effective water 
codes, I would recommend that you embody the same in your report, in or- 
der that it may be accessible to those interested in the subject. 



I have the honor to remain, 

Yours very respectfully, 



Geo. E. Chamberlain, 

Governor of Oregon. 



LETTER OF TRANSMITTAL. 



Salem, Oregon, November 30, 1908, 
Hon. Geo. E. Chamberlain, Governor of Oregon — 

Dear Sir: In compliance with your request of the 28th inst., I have ex- 
amined the address of Hon. Will R. King on the ''Law of Water Conserva- 
tion and Use" and find the engineering or administrative details recom- 
mended to be in harmony with those now in force in the states of Wyoming, 
Nebraska, New Mexico, Nevada, Idaho, Colorado, Utah, North Dakota, 
South Dakota, and Oklahoma. 

Effective water laws are had in all these states; the fundamental difference, 
however, appears to be in the method of determining rights to the use of 
water which were initiated prior to the adoption of such laws. In the first 
four states mentioned, such rights are determined by appointive administra- 
tive officers, subject to appeal to the courts. In the other states, by the 
courts direct. 

The general summary of the address being in harmony with the recom- 
mendations as embodied in the second biennial report of this office, its pub- 
lication as a supplement thereto will be of great value, because of the dis- 
cussion from a legal point of view. 

Very respectfully, 

John H. Lewis, 

State Engineer. 



LAW OF WATER CONSERVATION AND USE. 



Mr. President and Members of the Oregon State Bar Association: 

The subject assigned to me is of such magnitude, that, 
within the short time to which I am necessarily limited, I 
can but give its prominent features a brief consideration. 
The benefits accruing to private owners, as well as to the 
public in general, from the application of the water supply 
to the most useful needs of industry and agriculture, are 
excelled only by those of the soil itself; the two go hand in 
hand. Especially is this true in what is termed the arid sec- 
tion of our State. And in what is known as the humid 
section of Oregon its untold advantage to agricultural inter- 
ests will soon be appreciated. This can well be illustrated 
by reminding the owners of lands in the richest farming 
sections of the Willamette Valley, where they boast of abund- 
ant rains, that the same kind of lands for which they- are 
glad to receive seventy-five dollars per acre will sell in the 
irrigated districts of Eastern Oregon for more than twice that 
price. The reason is clear; where irrigation is in use the 
moisture is received wherever and whenever desired, and 
during a season of the year when most needed, thus increasing 
the productiveness of the soil proportionately. This increased 
productiveness and value, as a result of the proper application 
of water to the soil, demonstrates the necessity of a system 
of laws safely guarding in every way the resources of such 
immeasurable value. 

At the last session of the legislature, additional legislation 
was attempted. An irrigation code was prepared with much 
care, and carefully considered by various committees, repre- 
senting the different irrigation interests, and recommended 
by the Governor in his message, but it was defeated, due to 
the activity of those who always fear that any legislation 
which will result in the greatest good to the greatest number 
will impede the progress made looking toward the monopoli- 
zation of irrigation and water powers of the State. Some one 
has said, "Give me all the money of the world and I will own 
the people of the world." But with equal force and truth it 
might be added, "Give me control of flowing streams, water 
powers, and power sites, and I will own the land of the world, 
its people, and their homes." 



Law of Water Conservation and Use. 



This system of monopoly was well understood centuries 
ago and history records events when tribute was levied upon 
the consumer by those securing control of the water supply. 
In this State the forces that would have all pay tribute were, 
and still are, determined that any legislation looking toward 
the control of the water by the people and home builders 
should be defeated. 

By the aid of members selected on account of tr.eir political 
affiliations, without reference to their appreciation of the 
fact that they should favor such legislation as would be most 
conducive to the interests of the whole people, a much needed 
irrigation code met its defeat. 

The nation during the past decade has been awakening to 
a realization of the fact that many millions of acres of its 
best agricultural and timber lands have passed into the hands 
and absolute control of the few who through their foresight 
have availed themselves of the generosity of the Government 
in this respect and become the thrifty landlords of the country. 
Only in recent years have the lands thus generously bestowed 
been missed and tr.e magnitude of the error of such policy 
fully realized. 

A like wasteful and perhaps more ruinous policy has also 
been pursued with respect to our water resources. Not only 
have our water powers and water supply been steadily mo- 
nopolized for many years, without practical resistance on 
behalf of our State, but there has also been, until recently, 
a rapid and unnecessary destruction of our forests, which has 
been permitted and until recently allowed to pass by unnoticed. 
Only by the protection of our forests can the permanency of 
our water supply be assured. 

Every water suit of much importance contains evidence 
disclosing that the supply of water in the streams involved 
is not as abundant as it was in the early settlement of the 
State. Some assert that the supply grows less from year to 
year; but a careful inspection of the testimony along these 
lines reveals that as a rule about the same quantity passes 
down the stream during the year but earlier in the season, 
leaving less water available during the dry periods when most 
needed. Before the days of railroads ; before there were farms 
in every valley; before herds of sheep, cattle, and horses 
grazed on every mountain range and grassy hillside, the 
timber, underbrush and grass stored up the rain, the snows 
being retained longer in tr.e mountains, and conserved them 
till needed. Thus were the snows melted gradually, the spring 
freshets held in check, and waters more evenly distributed 
throughout the season. But with the rush of immigration and 
occupation of all available lands for farms and stock ranges 



Supplement to Report of State Engineer. 



these conditions have been changed, and, added to the disap- 
pearance of the grass from the ranges and to the destruction 
of the underbrush from the foothills, have come the denuda- 
tion of the forests about the headwaters of our streams, fol- 
lowed by the early rush of waters down the valleys, often 
carrying not only destruction along the way but with it a 
reduction of from one to two months period of the water 
supply heretofore available for irrigation. This condition, 
added to the increased demand for water, is the moving cause 
of practically all water difficulties and litigation. 

It is manifest, therefore, that the State should co-operate 
to the fullest practicable extent with the Government in the 
protection of the forests at and near the headwaters of our 
streams, and thereby aid in the retention of these priceless 
resources. Some urge the construction of reservoirs for this 
purpose, and say, let the water flow but stop it on its course 
by means of dams constructed in the ravines, canyons, and 
natural water basins. In theory this sounds well, and to a 
great extent is practicable ; but it overlooks the fact that many 
generations may pass before this can be done in every locality 
where tre waste occurs, and that it is highly probable that 
the entire denuding of the forests may reduce the snows of 
winter and rainfall throughout the season, and leave less 
supply for the reservoirs when built. This may be but a 
theory; but it is a plausible one — one that is accepted by those 
who have given the subject many years of observation and 
study. It is a problem that perhaps only centuries of investi- 
gation can fully solve; yet one that by following the plan 
outlined for the conservation of the forests will certainly aid 
in its solution without the possibility of injury if erroneous. 
As a circumstance evidencing the probability of the correct- 
ness of such a theory, the memory of all the pioneers of the 
West, as handed down from the time of Lewis and Clark 
until the time when sawmills began to appear on every moun- 
tain side and in every canyon dotted with timber, records the 
hard winters, deep snows, and immense flow of the rivulets, 
creeks, and rivers in every valley throughout the arid sections. 
But now a winter seldom passes without complaint being 
made that there is but little snow and that the miner and 
farmer's water supply for the spring and summer seasons 
will be reduced accordingly. Hence, some system should be 
devised whereby the Nation and State may co-operate, not 
only in the protection of the watersheds by preserving the 
timber now remaining, but by replanting the denuded forests 
near the headwaters of all streams within the State. 

That our State has not fully appreciated its water resources 
and resultant benefits, is manifested by its inaction with ref- 



10 Law of Water Conservation and Use. 



erence to laws looking towards the protection of these re- 
sources. This has largely been due to the fact that only a 
part of the State has been deemed arid and that there is a 
corresponding lack of interest throughout the so-called humid 
sections. However, when once the subject is fully understood, 
it will be found that there are no humid sections. As before 
observed, there is no part of the State in which irrigation at 
times would not greatly enhance the productiveness of the 
soil. But a want of realization and appreciation of this fact 
in the most thickly populated sections of the State has re- 
tarded the development of irrigation and held in check legis- 
lative enactments on the subject. Only a few years ago a 
constitutional amendment patterned after the Constitution 
of Idaho on the subject was rejected by the people; yet, as 
a result of the same constitutional provision, Idaho has ad- 
vanced to the front rank in irrigation enterprises and devel- 
opment. One corporate enterprise alone in that State along 
the Snake River Valley bids fair to excel any yet undertaken 
in Oregon, either by private or corporate enterprises, or of 
the Federal Government. One equally as great was contem- 
plated by the Reclamation Service in Malheur County, but 
finally rejected, and the millions of dollars set apart for that 
purpose withdrawn, largely due to the condition of our laws, 
making it necessary to remove to where there were less 
private holdings and more Government land for reclamation. 
In Idaho, however, the fact that large areas were in private 
hands served as no impediment, and the work is progressing. 
This is but a few miles across the line from Malheur County, 
where a like project was abandoned in Oregon. Much unjust 
criticism has been made against the Reclamation Service be- 
cause more enterprises under the Reclamation Act are not 
undertaken in our State. In this connection we hear it often 
observed that Oregon furnishes more money from the sale 
of its public lands than any other State. And this is true; 
but this criticism overlooks the fact that all public lands in 
Oregon, like those of all States except Texas, are the property 
of the people throughout the Nation — the property of the 
Government and not of the State. 

Although our State has, through the sale of public lands 
sold within its borders, furnished more money to the recla- 
mation fund than any other State, yet we are, and will con- 
tinue to be, estopped to complain that our pro-rata has not 
returned until we can take a more forward step in irrigation 
legislation, or until we can at least be placed on an equality 
in this respect with our neighboring States of Idaho and 
Nevada. 



Supplement to Report of State Engineer. n 



Some, with strong hopes, look to the courts for the desired 
relief, but it must be remembered that the courts should only 
interpret laws, not make them. It is their sworn duty not 
to determine what the laws should be, but what they are. 

And in this connection it has been aptly observed that it 
should always be kept in mind that it is a dangerous policy 
to uphold a little wrong, that much good may come from it. 
in other words, a precedent established contrary to the well- 
settled principles of law, even though it might in that par- 
ticular case subserve the ends of justice, may in time become 
a weapon of great injustice. 

Under the abandoned but once contemplated project in 
Malheur County alone the permanency of 10,000 homes in 
that section would have been assured. But let it be remem- 
bered that a like number of homes in any other State or 
section of our country is of like benefit to the Nation at 
large, although a loss to our State locally. It may share in 
the general benefits, but must lose from a direct and local 
standpoint. It is immaterial, therefore, to the Government 
that its projects must go elsewhere. Nor is it justly open 
to criticism for seeking fields of operation where the laws 
are most conducive to the successful operation and main- 
tenance of the works intended by the Reclamation Act. The 
Government can construct its work and, until paid for by 
the water consumers, control its management in a general, 
and to some extent special manner. 

But some system must be devised whereby it can, before 
commencement of operations, determine the available water 
supply. If we believe the records of the State, there is no 
available water supply; from actual computation it is found 
that in Eastern Oregon alone the records show appropriations 
of water sufficient to make sixteen rivers of the size of the 
Columbia during its low water flow. This abuse should be 
remedied that we may know which are the bona fide and 
which are the abandoned' and over-recorded water rights. 
And some system of adjusting the private holdings, by con- 
demnation or other lawful means, should be provided. 

What applies to the encouragement of Government projects 
will with equal force apply to the encouragement of private 
and corporate enterprises. The States of Idaho, Wyoming, 
Nevada, as well as the States of Utah and Colorado, are 
twenty years ahead of Oregon in this respect. California, 
through its development of the irrigation district system, also 
has many advantages over Oregon. W T e have a similar dis- 
trict law, but thus far, with but one exception, it has not 
been taken advantage of. This law when once applied will, 
in many of the localities by its community ownership and 



12 Law of Water Conservation and Use. 

management and distribution of waters used for irrigation, 
solve the problem, but will not meet all contingencies. It is 
more suitable for large and densely settled localities where 
rights are practically determined and added irrigation works 
are needed to conserve the water supply by means of reser- 
voirs. The law as it stands should be remodeled and amended 
in many details. It was patterned after the Idaho irrigation 
district act, which has been in use there for thirteen years 
since our district law was enacted. This long experience 
there has called for many changes, which have been added 
from year to year, until its success is now unquestioned. 
Under that system a large percentage of the valleys in that 
State are now being successfully irrigated. We would do 
well, therefore, to profit by Idaho's experience and add the 
amendments there found necessary, to our present district 
law. In short, much time would be saved by adopting the 
present Idaho law as a whole, with such modifications as are 
essential to its adaptation to the different conditions of our 
State, if any. But I know of no obstacle, constitutional or 
otherwise, in the way of its adoption and successful operation 
here. 

But on some other important matters of legislation we find 
our State Constitution insufficient to permit ail the desired 
relief. In fact, I believe the most effective step that can be 
taken looking towards the solution of our many intricate 
irrigation problems, to say nothing of the solution of many 
other questions arising from year to year, would be the 
adoption of a new constitution, one fully adapted to the many 
new conditions of the present day, but few of which were 
even dreamed of at the time of the adoption of our present 
constitution. 

Let the coming legislature do what others before have long 
neglected to do, and provide for the calling of a constitutional 
convention. This would enable a convention of representative 
citizens from all parts of Oregon to meet in session for that 
express purpose, with sufficient time at their command not 
only to eliminate many of the extinct and useless provisions 
of the organic laws of the State but to straighten out many 
of the crooked turns which have long proved obstacles to our 
progress. The constitution at the time of its adoption was a 
great work and answered the purposes of that day and for 
many years following; but all the combined wisdom of the 
world could not then have foreseen the wonderful progress 
to be made within the fifty years to follow and have provided 
a consitution fully adapted for even the generation then to 
follow — much less for all time. 



Supplement to Report of State Engineer. 13 



In the reclamation of arid lands the question is often asked 
as to why Idaho, Wyoming, Colorado, and some other States 
progress more rapidly than Oregon. Various reasons may 
be assigned, one of the principal ones being that they recently 
came into the Union and with constitutions enacted under 
conditions in that time a half century ahead of those existing 
when our State had its birth. These new commonwealths 
accordingly declared that the waters of their streams belong 
to the State. The State assumed control of the water re- 
sources, and through its legislation provided a means and 
manner of diversion, and established a system of recording 
and protecting water rights. In doing so they were not met 
on every progressive turn with inhibitions in the constitution ; 
there they found protection and encouragement in such pro- 
gressive work. In place of looking to judicial interpretation 
to pave a way th ey turned to the law-making body created for 
law-making purposes, to which, in this State, with its out- 
worn constitution, we too often look in vain. Constitutions 
have long been, and we hope will forever continue to be the 
safeguard of the liberties of the people of every common- 
wealth where adopted. They serve to protect them from 
the selfish attacks and greed of power, which power in all 
governments and in all ages, when unchecked, has passed 
into the hands of the few, and eventually led to monarchial 
rule; but it, like the clothing of individuals, occasionally needs 
replacement with new and up-to-date material. A nation's 
organic laws must be kept apace with its progression. Patches 
by amendments, it is true, serve as an aid; but the process 
is too slow to keep pace with this day and age of electricity, 
steam roads,- interurban lines, and flying machines. Give the 
people another opportunity to select an able body of repre- 
sentatives, to meet in a sixty-days' session, who will devote 
their whole time and energies, in the preparation for submis- 
sion to the voters, of a new magna charta for our State. In 
this manner the best features of the old will be retained, 
dead letters discarded, and such new material added as our 
present time progress, and changed conditions, demand. 

All must concede that abler and more patriotic men can 
not be found than those of whom the convention of 1857 
consisted. If, in those trying days with but 5,000 voters in 
Oregon from which to select its delegates, such an able and 
representative body of statesmen were found, Oregon today, 
with more than 100,000 eligible men from which to select 
constitutional delegates, should be equal to the emergency 
and accordingly find another body of patriotic statesmen 
equally as able to remodel and made more substantial the 



14 Law of Water Conservation and Use. 

foundation of our State, erected under the disadvantages of 
that day and time. 

Amendments from year to year are too slow as well as 
less effectual, and add as much to the complications as to 
the solution of many of the problems of state. But a few 
years more and our best resources will pass beyond our reach 
and we again will hear it remarked that the door is locked 
too late. An amendment, referred to, respecting irrigation, 
taken almost verbatim from the Idaho Constitution, was voted 
upon only ten years ago and defeated, notwithstanding Idaho 
adopted it without opposition. Ten years have elapsed with- 
out another attempt ; and I dare say, if we await results from 
this plan the desired purpose will never be accomplished; 
what is the business of all is the affair of none. Our public 
lands passed beyond the reach of the people before their value 
was appreciated. About half of th e best lands were practi- 
cally given away under special grants. Our forests have 
been meeting with a similar fate, and the water powers and 
public streams are fast passing from the people, or the public. 
When these resources have all departed we will miss them; 
but while abundant, have passed them by. History records: 
" Seven cities mourned the Homer dead, from which the living 
Homer begged his bread." While he was among them he 
was neglected; but when gone they wanted him. This is 
the possible fate of many of our natural resources, to avoid 
which we must act, and act at once. 

In this State we have had too much of that sentiment, "Let 
the future take care of itself; let every one look out for the 
present;" "every one for himself, and the devil take the 
hindmost." We frequently hear our friends urge that we 
need no statutory provisions; that we should leave it to the 
courts ; that they will pull us through, etc. ; but my observa- 
tion has been that they who advocate such remedies are 
usually the first to complain when it is suspected that their 
remedy has been applied. And this complaint is sure to be 
heard from the land and cattle kings. The burden of the song 
is "let well enough alone." It is this class that usually wants 
to retain the old common law doctrine of riparian rights with 
all its ancient and outgrown customs annexed. They advo- 
cate not that "water irrigates; let it irrigate," but say, "it- 
runs; let it run." In other words, "let the beautiful stream 
continue to bubble down the mountain side singing the sweet 
song of prosperity, so that the stock may continue to come 
down to drink, with only the large stock ranches and cow- 
boys to be seen for miles away." Harney County has one of 
these farms of from one to five miles in width and thirty 



Supplement to Report of State Engineer. 15 

miles in length. Here the stock come down to drink and 
the water runs; but no homes are seen to grace and civilize 
the vast area represented by this immense farm. This is but 
a sample of others throughout the arid West as well as in 
our State. Those wr. o believe in seeing the large cattle ranches 
replaced by small farms and homes, and their owners by 
their industry civilize and build up our commonwealth, thus 
furnishing inducements for the construction of railway lines 
ana assuring progression and prosperity, should favor the 
legislation that has long been tried in our nearby and neigh- . 
boring States, where happy homes have replaced the stock 
farms and ranges, giving in lieu of the sparsely and scattered 
settlements the populous valleys dotted with their many cities 
and towns. 

But in considering the needed legislation it is often con- 
fused with the laws we have. I have sometimes heard it 
remarked, and believe, that if we should codify all our laws 
on the subject, as handed down to us through the common 
law, judicial construction, and application thereof, including 
those embraced in our statutes, adding nothing new, and frame 
them into one bill and attempt to have it passed by our State 
legislature, it surely would be defeated. We would find lobby- 
ists from all parts of the State, representing special interests 
before the committee on irrigation and explaining the disas- 
trous consequences that would ensue if such a code should 
be adopted. Telegrams opposing its passage would come from 
Umatilla County, from owners of large projects fearing for 
the welfare of their projects. Some of Jackson County's citi- 
zens having private enterprises at heart would be on hand, 
and the wires from Harney County would soon become warm 
with advice to the effect that a committee with opposing 
petitions would soon arrive to assist in killing the bill, saying, 
"Water runs; let it run; cattle drink; let them drink," but 
"kill the bill." Telegrams protesting against it would be sent 
by every large ditch owner, including Malheur County, to^ 
those whom the papers announce are favorable to its passage. 
The roll call would begin; some would be seen to dodge it; 
while others would be found absent who but a few hours 
before were strongly in favor of it; and the bill would be 
lost — gone the way of all that tried to come before. And 
all this opposition would overlook the fact that the objection- 
able features thus giving rise to such opposition are, and 
long have been, the laws in force in this State, and that they 
will continue to impede our progress until progressive action 
is taken. This picture is not overdrawn. I put in thirty days 
during last session trying to procure some irrigation legisla- 



16 Law of Water Conservation and Use. 



tion. In the bill were necessarily included some features 
which were but declaratory of present laws. This was due 
largely to the difficulty in segregating them. Again, it was 
thought best to include some of our present laws so that as 
complete a water code as practicable might be enacted. But 
lobbyists soon appeared from different sections opposing it; 
and we found more opposition stirred up by reason of features 
included in the bill which had long been the law than by the 
intended new laws not heretofore in force in this State. This 
to us looked absurd, but it answered the purpose for those 
determined to block legislation on the subject. It changed 
votes that could not have been reached in any other way. The 
bill was defeated and irrigation projects contemplated as well 
as those long in use have suffered accordingly. The bill lacked 
but three votes on final ballot, two of which were the result 
of members absenting themselves during roll call to escape 
voting thereon. Some irrigation projects have prospered in 
spite of the insufficiency of our laws, but not as a result of it. 
For every dollar invested in this line and for every acre re- 
claimed in Oregon, I can take you to Idaho and show you at 
least ten dollars invested and acreage in proportion reclaimed 
within the same period of time; and their natural resources 
in that respect do not excel ours. The difference is due to 
our laws ; they are more secure there than here. If they want 
the rights adjudicated on a stream so that they may determine 
the surplus water, a method is provided whereby a suit may 
be brought, a survey ordered by the court, the survey made 
by the State Engineer, of whose data, plats and information 
gathered and recorded by him the courts may take judicial 
knowledge. A suit is then brought and rights determined, 
that they may know the available water supply at hand. 

The inefficiency of our statutes along these lines, as well 
as the impracticability of the courts bridging over the many 
deficiencies, has been fully demonstrated by many years of 
* experience. Court decrees only bind the parties thereto, and 
in many cases soon prove inadequate to do justice even be- 
tween them, as climates change, affecting the water supply, 
to say nothing as to the effect brought about by subsequent 
nropriators ana increase^ use by those not parties to the 
suit. To meet the new conditions as they arise, decrees should, 
to a limited extent, remain under the control of the court to 
meet unforeseen emergencies. 

One of the problems with which we are confronted is the 
lack of some definite system of water right titles. As a 
result the water rights, as a rule, are uncertain both to the 
water user and investor. Any person can acquire a prima 



Supplement to Report of State Engineer. 17 

facie water right in this State by posting a notice at the 
proposed point of diversion, stating the amount of water 
claimed and the intended use, and recording the notice in the 
county clerk's or recorder's office within ten days thereafter. 
If the water is to be used for irrigation purposes, a copy of 
the notice should also be filed in the office of the State Engi- 
neer. It is immaterial that waters of a stream have already 
been fully utilized at points below. The notice may specify 
any amount, even though such amount exceed the entire flow 
of the stream. It may be impossible to use the water bene- 
ficially for the purpose as claimed, and, as a matter of law, 
the appropriator may be limited to the quantity thus applied 
within a reasonable time; but that makes no difference, so 
far as the prima facie right thereto may be concerned. So 
long as construction is commenced within six months, your 
title to the water susceptible of appropriation and included 
in your notice is thus apparently complete, but the record is 
not completed by the filing of proof that work has commenced. 
By refiling every six months, a water right can be held in- 
definitely without use, and legitimate development retarded. 
The term "prosecution of work with due diligence" is very 
indefinite and it is possible, in some instances, and often 
happens, that it means the indefinite employment of but a 
single man at the intake, often making it almost impossible 
for a legitimate investor to secure a water right without pay- 
ing the hold-up price of the man filing the notice, sometimes 
called the "notice man." Such "notice men," who retard the 
development of our water resources and energetically oppose 
the enactment of beneficial laws, by proper regulation can 
be eliminated as easily as was the same class, who, in the 
early days, retarded the development of the mining resources 
of the West by merely posting his notices, etc. The payment 
to the State of a certain fee, based upon the amount appro- 
priated or the theoretical power to be developed, should take 
the place of the mining requirement of labor before filing 
the notice. "Final proof" on all water appropriations should 
be made within a reasonable time after filing the notice, and 
not to exceed five years for the largest project. At the 
expiration of, say, half the time allowed, proof that at least 
one-fifth of the work has been completed should be filed, so 
that the public may know if work is under way and the right 
liable ultimately to become vested. Upon completion of the 
work, final proof should be made, and a water right, or deed 
of some kind, issued by the State, thus removing one of the 
most serious obstacles to .irrigation development. 

A clear and forcible illustration of the defects of our present 



18 Law of Water Conservation and Use. 



system may be found among the irrigationists along the Walla 
Walla River in Oregon. One hundred and ninety ditches there 
divert water from the stream within a distance of ten miles. 
These ditches supply water for the irrigation of but five 
thousand acres, furnish power to mills, factories, electric light 
plants, etc., and for domestic purposes. During the last thirty 
years, various suits have been instituted, endeavoring to se- 
cure a just distribution of the waters, the most recent being 
filed about three years ago, involving more than four hun- 
dred interested parties along the stream. This is still pend- 
ing, and none of the previous litigation has afforded any 
definite results. Instead, rights have gradually multiplied 
and are becoming more complicated and uncertain. The early 
settlement took place during the sixties in the lower valley. 
Others settled above, diverting water; old rights were con- 
stantly enlarged; and conditions became such that water was 
diverted by appropriators without reference to any rules or 
regulations and without regard to the rights of others. 

In 1905 a suit was begun in the circuit court, involving 
almost all these parties — more than four hundred, including 
corporations, diverting water from this stream. About twenty- 
five lawyers were retained to defend the various rights. A 
decree has not as yet been entered by the lower court. In 
time, the case will doubtless reach the Supreme Court and 
the relative rights of the parties there be determined. In the 
meantime, new rights are being initiated, old ones enlarged, 
and the same conditions which brought on the present suit 
still exist. The decree, when rendered, will be effective as a 
basis for distribution of water between the parties to it, leav- 
ing for further adjudication the rights of subsequent claim- 
ants. Storage will, perhaps, ultimately be provided on the 
headwaters of such stream and the attempt made to convey 
such water to lands in the lower valley. This in itself will 
add to the difficulties of enforcing the decree when entered. 
New litigation will, therefore, follow, and, under the present 
system, uncertainties will thus continue. The burden on irri- 
gated agriculture will, accordingly, grow, of which the above 
is but one of many illustrations that may be given, much of 
which can be avoided by proper and timely legislation. But 
the cost of distributing the water of the stream alluded to, 
under State supervision, would be insignificant as compared 
with the present system; would result in the restoration of 
order, safety, and added prosperity to that community. 

An administrative system similar to that in use in Nevada, 
Wyoming, and New Mexico would furnish the police powers 
essential to the enforcement of the various rights without 



Supplement to Report of State Engineer. 19 

unnecessary delays or expense, and I believe some system 
of this kind will soon prove absolutely necessary in every 
irrigated section of the State where more than a half dozen 
water users may be found in one locality ; unless the irrigation 
district system is applied; and even then in some localities 
the district system may prove unequal to the emeregncy. The 
irrigation district law is provided with an effective admin- 
istrative system for distribution of waters within the district, 
and is in some respects similar to, and as effective as, other 
municipal corporations. In fact, the management and con- 
trol of water for irrigation, manufacture, and all useful pur- 
poses must eventually be and remain a matter of public 
concern, but local in its application, to the same extent as 
the affairs of municipalities. 

Some definite system of recording water right titles must 
be devised whereby the titles may be abstracted as are land 
titles. The Torrens Land Act has proved the most effectual 
system for recording land titles, and its provisions should be 
extended so that the title to water may be registered either 
as an appurtenant to, and in connection with, land as regis- 
tered, or by separate and distinct proceedings instituted in 
some similar and as effective a manner. To encourage this, 
some system of rebating part of the taxes might be provided 
for those whose land and water titles are thus registered, 
furnishing thereby an inducement for a settlement of these 
rights during the lifetime of available witnesses. All clerk 
and court fees in such cases could be removed, except the 
sinking fund as now provided for the recompense of those 
who without notice unjustly and unwittingly may be affected 
by such decrees. 

Again, some more convenient method should be devised 
for perpetuating testimony for use in future controversies 
likely to arise after the death of those most cognizant of the 
facts. The statute of limitations as to water right titles should 
be reduced to five years. This is the period of limitation long 
in force in California in reference to all claims affecting 
both land and water. The passing away of the old settlers, 
who are so often the only witnesses to such controversies, will 
soon make such change necessary here. Our present laws 
on the question should be simplified. In fact, I believe the 
constitution should be so amended as to permit a separate, 
more convenient, and less expensive system of adjudication 
of all such rights. A special tribunal should be created to 
try that class of disputes, with such other matters as may 
be incidental to them, one of the members of which should 
be a person fully versed and experienced in irrigation and 



20 Law of Water Conservation and Use. 

_ 

civil engineering. The right of appeal should be given from 
such commission, but judging from the experience of other 
States where this system has been tried, this would seldom 
become necessary and but rarely occur. 

The administrative system should be such that when the 
rights of the people in a community are determined, a person 
with sufficient police powers could be selected and placed in 
charge, where deemed advisable by the local court, as would 
insure enforcement of such rights without the necessity of 
resorting to the slow and cumbersome method either of dam- 
age suits or of contempt procedings. 

Under our present system, if a man steals from you a 
ten-dollar horse he is subject to imprisonment for ten years; 
but if he forcibly or otherwise takes the water from your 
irrigation ditch without your knowledge or consent, causing 
you to lose a thousand-dollar crop, you can await a session 
of circuit court, to convene probably six months later, when 
you can sue for damages and secure, perhaps, a worthless 
judgment, or in some instances have the offender fined a few 
dollars for contempt of court and told to sin no more. Many 
infirmities in our present system could be pointed out, but I 
will pass on. 

In most States which have assumed control of their water 
resources, the State Engineer is made the head of the admin- 
istrative system. In his office will be found a complete 
record of all water rights as initiated and of old rights as 
determined by the courts or by an appointed commission. It 
is made the duty of such engineer, in case of shortage on any 
stream where the records are complete, to regulate diversions 
so that vested rights may be protected. To accomplish this, 
the State is divided into three or more divisions, following 
important drainage lines, these water divisions being further 
divided into water districts. During the dry season, a water 
master, or policeman, is appointed to apportion the water in 
the stream among the different canals in his district. These 
water masters report to the water commissioner in charge 
of the respective water divisions, who direct the distribution 
of water, under the supervision of the State Engineer. 

Such an administrative system for the orderly distribution 
of water can be provided without cost to the general tax-payer 
by compelling the future appropriates of water to pay a 
reasonable fee or license for the privilege. However, a part 
of the burden should more properly be paid by those directly 
benefited. This may be accomplished by compelling all water 
users to pay an annual license to the State, based upon the 
amount appropriated or the theoretical power developed by 



Supplement to Report of State Engineer. 21 



the appropriation as made. Such a license system, in addi- 
tion to meeting the cost of administration, would be of great 
benefit to the public in two ways: (1) It would have a tend- 
ency to reduce extravagant and excessive claims to water, 
and (2) prevent its waste. 

The experience of Wyoming has demonstrated the wisdom 
of leaving all water adjudications to an appointed board, 
subject to appeal to the courts. The most complicated case 
in such State has invariably been decided within one year, 
and usually within six months. Up to July, 1905, over five 
thousand ditch rights, which had been initiated prior to the 
adoption of the Wyoming law, were determined by such com- 
mission. • But seven appeals to the courts were taken from 
these decisions, and such appeals affected less than fifty 
ditches, the cost therefor to the ditch owner not exceeding 
two dollars per ditch, the balance being promptly and properly 
paid by the State. 

The State Engineer is there made president of the board 
of control. In one of his recent reports, in referring to re- 
cently appealed cases, he remarks that "the last case before 
our State Supreme Court was in the courts of the State for 
fifteen years. All of the parties interested in this suit are 
bankrupt today. Their lands have passed into the hands of 
others. The same determination would have been reached 
by the board of control within six months without expense 
to the water users. An administrative officer understands 
w T hat information he must secure before he can determine a 
right. The court must depend upon biased testimony from 
both sides, or all sides, and then guess at the truth. Where 
only circumstantial evidence is obtainable, or where some 
point of law has to be interpreted, the court is unquestionably 
the tribunal to which the matter should be referred, but 
where simple fact and evidence have to be obtained, and where 
this can be secured largely by surveys and measurements, 
there is no question in my mind but that such work should 
remain in the hands of administrative officers." 

It further appears from his report that the cost to the 
public for adjudications in that State during the past two 
years, assuming the board to have no other duties, was $11.46 
per ditch right, or about ten cents per acre. (See report by 
Clarence T. Johnston, State Engineer, on October 22, 1908.) 
These adjudications affected 2,172 rights to the use of water, 
and 210,290.73 acres, without an appeal in any case. 

The advantages in the commission system of adjudicating 
water rights are (1) that such commission can be composed, 
not only of lawyers, but also can include at least one engineer 



22 Law of Water Conservation and Use. 

experienced in irrigation practice; (2) that the experience 
gained in each adjudication is carried to the next hearing, 
this being, perhaps, in another judicial district; (3) that the 
commission can examine conditions in the field, order sur- 
veys and the gathering of other engineering data where neces- 
sary, and (4) a speedy adjudication made through freedom 
from the tedious delays necessary in court procedure. 

A- case is reported in one of the adjoining States that clearly 
illustrates the advantages of the commission system. "The 
plaintiff was granted a prior and first right to twenty second 
feet of water — the decision of this court being based upon 
the preponderance of evidence submitted to it and taken to 
be correct. An expert district engineer, upon personally 
examining the premises, would have ascertained positively 
that the ditch of the successful claimant could not under any 
condition carry more than eight second feet. Yet, under such 
system, the plaintiff in that action stands, by a judicial decree, 
with a recorded title of more than twice the volume of water 
which it can actually carry in its ditch and apply to a bene- 
ficial use." 

In one county in this State it appears that decrees were 
entered in the circuit court (but not appealed), as follows: 
"M," the lowest appropriator on the stream, obtained a decree 
for two hundred and ten inches of water against all others 
above him on the stream excepting "L," who is at the head 
of the stream and not a party to the suit. Later "C," whose 
farm, with water right, is situated between these two, ob- 
tained a decree against "L" for two hundred inches. There- 
after when a shortage occurred "C" would demand of "L" 
to let the water run to him, but when it was turned loose 
for that purpose, could get no water under this decree, for 
the reason that when the water reached his premises "M" 
would compel him to let it run on to him, under the earlier 
decree in favor of "M" and against "C." When found pass- 
ing "C," "L" then demands it as against "M." Query: Under 
this situation, who gets the water? 

An interesting case is also reported from California, where 
similar conditions prevail. "Ditch 'A' sued Ditch 'B' and 
upon sworn evidence introduced, obtained a decree giving it 
a priority of twenty second feet. Ditch 'B' sued Ditch 'C,' 
with the same results, and Ditch 'C thereafter sued Ditch 'A,' 
with the same result, and there were still thirty-five ditches 
on the same river, the priority or inferiority of whose rights 
had not been determined. The three judgments referred to 
are not practically worth the cost of filing the complaint." 
A similar illustration is given and this feature discussed in 



Supplement to Report of State Engineer. 23 



Hougl v. Porter (Or.) 95 Pac, at page 748. The anomalies 
above given could not have occurred had all rights been 
determined in one proceeding. 

In recognition of the reclamation act, and with a view to 
the adding of the contemplated projects under it, three years 
ago some legislation was enacted in this State. The office 
of State Engineer was created, but the powers granted are 
few. A most capable and efficient person was appointed to 
fill the office, and within the three short years he has held 
the position the valuable services rendered by him have fully 
demonstrated the wisdom of this official department of our 
State. An illustration of the benefit to be derived from the 
establishment of this office is that of the suit on the Walla 
Walla Eiver alluded to. The act creating the office of State 
Engineer permits the court, where the State and Government 
is made a party, to direct a complete survey to be made of 
all lands, ditches and reservoirs involved and report the same, 
arid sections of the State is that of ldrainage. Experience 
with all obtainable data to the court. In this case the State 
was made a party and the survey ordered. The survey was 
made as ordered and all necessary plats and data furnished, 
including stream gauging and measurements. This work re- 
quired one year's time for its completion, but I- feel safe in 
saying, as one of tr. e. attorneys for the plaintiffs at that time, 
and instrumental in procuring the order for the measurements 
and survey, that by this method thousands of dollars have 
been saved to the litigants. There will probably be three 
thousand pages of testimony when the case is finally sub- 
mitted, but without the surveys and plats, stream measure- 
ments and other data furnished, not less than eight to ten 
tr. ousand pages of testimony would have been necessary. The 
time saved to the court alone, to say nothing of the benefits 
accruing to the litigants, more than compensates the cost of 
the survey. Some doubt exists as to whether, under the 
present statute, such survey can be ordered if the State or 
Government is not a party. This doubt should be removed. 
And the State or county, on some equitable basis, should pay 
at least half the expense incurred, the remaining half to be 
paid by the litigants in proportion to the benefits received 
as determined by the court. Both the State and county are 
benefited to such an extent that a payment of even the entire 
cost would, in the end, be a profitable investment. The ex- 
pense saved in trials growing out of disputes having their 
inception, and arising directly as well as indirectly out of 
such matters, would, in the end, more than reimburse the 
outlay. 



24 Law of Water Conservation and Use. 



Sufficient funds should be provided, to be used in connec- 
tion with the aid furnished by the Government in this respect, 
for the gauging of all streams and for the ascertainment of 
all the available water supply in every locality throughout 
the State. This will take much time and money, but millions 
of acres are susceptible of reclamation under the Carey Act, 
the taxes upon which, alone, when reclaimed, would soon 
repay the expense incurred. Until some method is provided 
for the securing of this information, but few, if any, lands 
will be successfully reclaimed under this act, and every acre 
unreclaimed adds to the State's loss. 

The important questions, which, like the ghost of Shakes- 
peare's day, "will not down," and the ones among those difficult 
of determination as they arise, are questions involving riparian 
rights. It is well known that, under the common law, a 
riparian owner was entitled to have the stream flow by his 
premises undiminished either in quantity or in quality, except 
such as might supply the natural wants of the other riparian 
proprietors. It is said that if such proprietors could consume 
all of it by their natural wants they were permitted to do so. 
However, it is doubtful if at common law they could, by 
large herds of stock, consume it all to the prejudice of others 
riparian to the stream. /0oy, as was held in Salem Flouring 
Mills v. Lord, 42 Or. 82, can all of it, under all circumstances, 
be thus consumed to supply the natural and domestic wants 
and needs of a riparian proprietor. Some States have held 
the doctrine inapplicable to the conditions in the West and 
adopted that of prior appropriation as the basis of all rights. 
It occurs to me that as a choice between the two doctrines — 
riparian rights and prior appropriation — as they are usually 
understood, "prior appropriation" is the better, and the one 
most suitable to the conditions of this day and age, as applied 
to our Western climates and soils. Some States, however, 
including ours, appear to hold to the modified doctrine, to 
the effect that a riparian owner, as between himself and 
other riparian proprietors, may consume a reasonable quantity 
of water for irrigation, providing it is used in such manner 
as to permit its return to the stream before it reaches others 
on the stream below. However, the return of the water 
without substantial depletion is impossible if used for irri- 
gation. As a matter of practice, only the surplus diverted 
can be thus returned. As a rule, after diversion not less than 
two thirds is lost by percolation and evaporation. And I 
might pause to ask if this is not, then, an appropriation of 
water in the fullest sense of the term. Thus we find the 
doctrine of riparian rights, under its so-called modified form, 



Supplement to Report of State Engineer. 25 



greatly extended, even in those States where riparian rights 
are recognized. Under the ancient rule it could be used only 
for stock, domestic, and power purposes, but now we find 
that not only a reasonable supply may be consumed in that 
manner but added thereto is such reasonable quantity as may 
be necessary to allay the thirst, not only of the owner, his 
family and his stock, but of the soil as well. But, while our 
courts have held the riparian owners to be entitled to a rea- 
sonable quantity for these purposes, nowhere do we find in 
any judicial decision the term "reasonable use" fully defined. 
In the application of this phrase, let us take, for example, 
the lands near the head of the Deschutes River. If a company 
owning thousands of acres of these riparian lands at that 
point has permitted the water of this stream to flow unused 
within its banks for half a century, during which time the 
non-riparian lands of the country below have become dotted 
and settled with valleys *or happy homes, including towns and 
farms, may it now, or even at a future time, assert its riparian 
rights, demand the waters of this river for the irrigation of 
its riparian lands, even to the consumption of the water of the 
entire stream, and thus prevent the water for irrigation pur- 
poses from reaching those well-established towns and thriving 
farming communities, making their lands valueless, to their 
financial ruin? Or wil! justice and equity intervene and hold 
that so long a delayed demand should not come within the 
term "reasonable use," or reasonable application of its riparian 
rights? The extensive development of the unreclaimed lands 
must soon confront the courts with this problem. If it is 
within the power of the courts to determine these matters 
on an equitable basis, under the facts of each particular case 
as it may arise, the solution is not so difficult; while, if it is 
a legislative function only, it becomes important that legislative 
relief should be afforded without delay. Much assistance, to 
say the least, may be afforded in the solution of this problem 
by a legislative enactment defining riparian rights, determin- 
ing what is a reasonable use and application, how it shall be 
ascertained, what are riparian lands, the limit thereof, and 
the establishing of a limit of time that water may remain 
unappropriated by a riparian owner before being deemed 
abandoned. I am of the impression that "reasonable use" and 
application under such circumstances is somewhat like the 
words "public policy," as to which no fixed and inflexible • 
rule can safely be applied, but must of necessity be left to 
judicial determination under the particular facts in each 
case, as the questions arise. And this appears to be the tend- 
ency of the latest decisions bearing on the subject and ultimate 



26 Law of Water Conservation and Use. 

effect of the holding of the United States Court of Appeals in 
Andrew v. Baraman, 140 Fed. 14, and of the United States 
Supreme Court in the recent case of Kansas v. Colorado, 206 
U. S. 46. (See also decision in same case in 185 U. S. 125.) 
But if a legislative solution is possible, it should be furnished. 
Legislative declarations of the law are, and should always 
remain, more satisfactory than any judicial interpretation, 
accompanied by even a suspicion of what is sometimes termed 
"judicial legislation." 

Another question of great importance to all of the strictly 
arid sections of the State is that of drainage. Experience 
among irrigators has developed that it requires but a few 
years of irrigation to bring to the surface the alkali in the 
soil. Also, that the alkali in the soil of the higher lands is, 
by percolation, forced to the farm below. The reclamation 
of the bench lands thereby in time destroys the valley farms, 
unless some system of drainage is provided. This is usually » 
neglected, the result of which is that much of the litigation 
of the future growing out of the use of water will come from 
this source. The determination of these controversies should 
be facilitated, as well as where possible prevented, by statu- 
tory enactments applicable to these new conditions, and not 
left entirely to the common law, which is often inadequate 
for new conditions in the arid West. A measure of damages 
should be fixed, as well as the manner of ascertainment 
thereof. When deemed essential by the court, surveys by 
State engineers should be ordered to determine the facts 
involved in any litigation, and all surveys, plats and data thus 
gathered should become a part of the records of his office 
and, like that in reference to all questions concerning or grow- 
ing out of irrigation, should become prima facie evidence of 
the facts disclosed by such records, of which the courts should 
be permitted to take judicial knowledge. 

OPERATION OF PROPOSED LAW. 

If the plans I have briefly outlined should be adopted, their 
effect, briefly stated, would be as follows : 

A central office will be provided, where a complete and 
reliable record of all water rights as initiated, or of early 
rights as determined, can be found. This should be the State 
Engineer's office at the Capitol, following the experience of 
most Western States. It will be virtually an abstract office 
for water titles. A letter addressed to this office will bring 
by return mail a definite statement as to the amount and 
priority of any recorded right, whether vested or only initiated. 
If a prospective investor desires to know the total amount 



Supplement to Report of State Engineer. 27 

of vested rights to water from a stream in order to ascertain 
tfce amount of surplus water, eventually this can be furnished 
without delay. 

The penalty to make such record complete and of value 
to the public will be that no right to the use of water from any 
public stream can thereafter become vested except upon com- 
pliance with law and complete record in the central office. 

This law will not rest upon any specific constitutional pro- 
vision concerning water rights as had in Wyoming, but will, 
as in such State, be supported solely and entirely under the 
police power of the State. 

If surplus water is believed to exist in any stream, a defi- 
nite method of procedure will be provided whereby a vested 
right to such water can be secured. 

Instead of posting a notice in the brush on the bank of a 
stream where no one can find it, as under the present law, 
the date of priority will relate back to the date of receipt 
of an application in the central office. Any application which 
is in proper form, as prescribed by law, can be filed then as 
now. Notice of such application shall be given by publication 
in a local paper and a time set to hear and consider any ob- 
jections by those who may be injured by such diversion. The 
application will be limited, however, for irrigation purposes 
to the maximum quantity of water, as prescribed by law, and 
a time set, not to exceed five years, for the completion of such 
works, and not to exceed four years in addition thereto for 
applying the water to a beneficial use, before the application 
is granted. If, upon complaint, two-fifths of the work is not 
done in one-half the time allowed, as determined by the ad- 
ministrative officer, the water will revert to the public and 
become subject to reappropriation. Upon completion of the 
works, proof of such fact is made, the works inspected, their 
capacity determined, and a certificate issued. Upon applica- 
tion of the water to any beneficial use within tt e time allowed 
and as specified in the applicaton, a license or deed to such 
water will be issued by the State. The records will be extended 
each step, so that the public is fully advised in case further 
development is planned. 

Water appropriated for irrigation purposes will become 
appurtenant to the land irrigated and no other. Upon aban- 
donment of its use for a number of years, as specified by law, 
the water will revert to the public. 

Speculative filings can be prevented by a sliding scale fee, 
payable. to the State at the time of application. This should, 
as in Idaho, pay all administrative expenses, and will not dis- 



28 Law of Water Conservation and Use. 

courage development, as the public record and protection 
granted the investor is worth more to him than it costs. 

If the regular stream flow proves inadequate to supply all 
appropriators, the last appropriators will be shut off in order 
of priority by the administrative system, as heretofore ex- 
plained^ This includes a more practical method of distribut- 
ing water by periods of time, sometimes termed the "rotation 
method." Vested rights are thus protected without the State 
assuming the responsibility of determining the exact amount 
of unappropriated water in a stream. This is a matter of 
some uncertainty, due to annual and seasonal variations in 
stream discharge. 

Storage permits will be granted upon application, the same 
as described for appropriation of the regular flow. The 
stored water, when released into a natural stream channel, 
will be protected by the administrative officers, and the full 
amount recovered, less that lost by seepage and evaporation, 
at any point below. The discharge from the numerous reser- 
voirs which will ultimately be constructed on the headwaters 
of most streams will be regulated by the State. It is of no 
consequence to the owner of a reservoir whether he recovers 
the water stored by him or by some one else, so long as he 
receives its equivalent. 

RESULTING BENEFITS. 

I believe the following benefits will result from the adoption 
of such a water law: 

1. Those now using water will eventually, when invloved 
in litigation, be able to have their rights definitely determined 
and thereafter secured against encroachment. 

2. Titles to water will become as definite and as easily 
ascertained as titles to land. 

3. Water right litigation will rapidty decrease. 

4. Information necessary to facilitate investments can be 
readily secured. 

5. This would lead to rapid development of our water re- 
sources, increase our taxable wealth and indirectly promote 
other industries. 

6. Capital would have opened for it a field of safe and 
profitable investment. 

7. The laborer would have two new opportunities, one 
for work in the construction of canals, che other to obtain a 
home and the independence of farm li^e. 



Supplement to Report of State Engineer. 29 

8. These benefits can be secured without cost to the general 
taxpayer of the State through the adoption of a system of 
fees payable to the State by those directly benefited. 

SUMMARY. 

In conclusion, I submit the following as a general summary 
of my brief discussion of the law of water conservation and 
use as it might be promoted and regulated by legislative en- 
actments : 

1. Complete State control of diversions from streams 
should be provided. No water right in the future should 
become vested except by appropriation under the laws, rules 
and regulations prescribed by the State, and the diversion 
of water without right from a public stream, including all 
knowingly wrongful interference with the rights of others, 
to the injury of another, should be made a misdemeanor. 

2. A system should be provided whereby the priority and 
limitations of every existing right to the use of water can 
eventually be ascertained. 

3. Provision should be made for a reliable record in some 
central office of all rights to the use of water as determined, 
and of new rights as initiated. 

4. That actual measurements of ditches and streams be 
made as a basis for the adjudication of existing rights and 
for the initiation of new rights to the surplus waters. 

5. To provide a definite procedure whereby rights to sur- 
plus water can be acquired. 

6. That beneficial use should be the basis of all rights to 
the use of water, and that water for irrigation purposes should 
be made appurtenant to the land irrigated. 

7. All rights to the use of water for power development 
should be limited to some specified time, subject to renewal 
under certain restrictions. 

8. Permit the courts before which any litigation concerning 
irrigation or drainage, connected with, caused or made neces- 
sary by irrigation, or other use of water by artificial means, 
to take judicial knowledge of all records, plats, and statistics 
concerning streams or bodies of water within the State pre- 
pared under the supervision and in the custody of the State 
Engineer making such plats, data, etc., prima facie evidence 
of the facts disclosed thereby. 



30 Law of Water Conservation and Use. 

9. An efficient administrative system, with proper officers 
for the distribution of the water supply among those entitled 
to its use, should be provided, which officers could be appointed 
by some designated officer in localities as needed. 

10. An adequate system of fees, payable to the State by 
those benefited, should be provided for, so that eventually 
the 'system shall become self-supporting. 



LIBRARY OF CONGRESS 



028 130 749 



